Anonymity: private and public proceedings

20160419_174504Open justice principle

 

Anonymity in relation to court proceedings tends to go with privacy (or secrecy) in proceedings, notably in family proceedings. The default position in all proceedings remains open justice, and therefore that names can be publicised. This is the open justice principle whose rationale was clearly asserted (amongst many examples) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed?… In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said… ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’

 

In civil proceedings generally (including all appeals to the Court of Appeal) the general rule is that hearings are in open court (common law (above); CPR 1998 r 39.2(1)). This rule applies to divorce proceedings (FPR 2010 r 7.16(1)), and may apply to certain other family proceedings if the judge prefers to rely on common law rather than to a rule which only partially states it (ie that all family proceedings should be in ‘private’: FPR 2010 r 29.10)).

 

If the court says so, a hearing may be in private. In effect CPR 1998 r 39.2(3) and FPR 2010 r 7.16(3) says the same thing namely, that a hearing may be in private if amongst other factors:

 

(a) publicity would defeat the object of the hearing;…

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;… or

(f) the court considers this to be necessary, in the interests of justice.

 

Anonymity and Civil Procedure Rules 1998

 

Thus in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) (8 March 2019), Martin Spencer J a claimant who sought damages for psychiatric injury arising out of the stillbirth of her daughter was denied anonymity: none of the exceptions in CPR 1998 r 39.2(3) applied. Anyway, said the judge, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case.

 

By contrast, in XW v XH [2019] EWCA Civ 549 (2 April 2019), the Court of Appeal dealt with a financial relief appeal. The couple’s son had a life-threatening condition. At the conclusion of the trial below the judge had made a reporting restrictions order. He anonymised the names of various people and redacted part of his judgment, saying there was little if any public interest in knowing the family’s identity. The appeal court referred to Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 (where the wife’s application for anonymity in financial relief appeal proceedings failed) from which it extracted the following:

 

  • In a financial remedy appeal, a formal application must be made for restrictions or reporting and for anonymity;
  • only exceptionally would an order for anonymity supported by a reporting restrictions order be made in the Court of Appeal: parties were not routinely entitled to anonymity and the preservation of confidentiality in their financial affairs
  • parties could not waive the rights of the public by consent: the decision was the court’s, having conducted the balancing exercise in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (and see R v Legal Aid Board exp Kaim Todner[1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA; Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J);
  • the Court of Appeal would pay close regard to any anonymity order made by the first instance judge, although such orders were not binding (eg because of the different starting points for the respective courts);
  • the interests of a child might render it necessary to restrict public reporting of certain information in financial relief cases, K v L (Ancillary Relief: Inherited Wealth) [2011] EWCA Civ 550, Norman and Re S followed

 

Anonymity and divorce proceedings

 

On the assumption that anonymity is normally denied where a hearing is in open court, two recent divorce cases give pause for thought. Exceptionally for family proceedings, the same open court rules apply to divorce as to all civil proceedings. The foundation case for modern open court principles remains a nullity case – ie now Matrimonial Causes Act 1973 (MCA 1973: ie divorce) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where their lordships seemed astonished to think anyone could have thought the case should be heard in private. In AJ v DM [2019] EWHC 702 (Fam) (6 March 2019), Cohen J considered whether a wife’s divorce petition should be amended. There were other jurisdiction issues; but nothing in his judgement explains why the divorce aspect of the case – albeit that it might be said to be case management – should be anonymised as the rubric to the report says is the case.

 

M v P [2019] EWFC 14 (22 March 2019) was Sir James Munby’s marathon explanation (judgment post Presidential retirement) as to why a decree nisi based on a petition pleaded wrongly (couple married for less than 2 years at time of filing who claimed they had lived apart for two years, amended after decree to MCA 1973 s 1(2)(b) (behaviour)) was voidable. The court he said had power to find the decree absolute voidable – not void (ie in that cases, any remarriage would have been bigamous). The former President heard the case in open court. He allowed unrestricted reporting, but gave anonymity to the parties. At the end of the hearing he said that the reporting restrictions order should be continued indefinitely the parties full anonymity. He comes close to treating this as a matter of discretion (see [115]): ie for him to decide as he saw fit, not according to legal principle; and, for example he made no reference to the common law principles summarised in FPR 2010 r 7.16(3) (above).

 

Appeals: family proceedings

 

Many appeals in family proceedings are to the High Court. These may be in open court (FPR 2010 r 39.12A(2)(a) since December 2018); though the rule does not say in what circumstances. In CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019), Williams J created an unusual precedent (for commentary on the case see ‘Not a vacuum but a low pressure vessel’ (Seusspiciousminds) and ‘CS v SBH: a child’s competence to appoint her own lawyer’ (Transparency Project)). He was to have heard a child law appeal in open court; but because a solicitor who wished to appear as advocate to represent the child did not have higher rights, he decided to switch the appeal to be heard in chambers (see [22]).

 

No clear principle is yet laid down as to when an appeal under r 30.12A should not be in open court, which – after such cases as Norman v Norman (above) – might be thought to be the norm. But to diverge from principle because of the rights of audience accorded to a particular advocate may be thought original. It being a children case no question of anonymity was in issue.

 

FPR 2010 r 30.12A(4) suggests that a practice direction may deal with when a family hearing is to be in open court; but none has yet been made. The rule does not deal with anonymity, save – indirectly – in that secrecy of a hearing is likely to connote anonymity also.

 

Procedure

 

Any claim for anonymity, if not guaranteed by general principle (eg children proceedings, or proceedings concerning a protected party), must be applied for. Application must be well in advance of any trial (Zeromska-Smith (above)). The question of a parties’ anonymity is a discrete issue. In the case of an appeal to the court of appeal application should normally be made in the appellant’s notice (Norman v Norman; XW v XH (above).

 

Where the position under FPR 2010 r 30.12A(2) is as yet so vague, if in doubt an appellant should make application in their notice of appeal; or, if later, by application in FPR 2010 Pt 18.

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One thought on “Anonymity: private and public proceedings

  1. Reblogged this on | truthaholics and commented:
    Adherence to the open justice is vital to show in whose interests decisions are made in practice.
    “Procedure:
    Any claim for anonymity, if not guaranteed by general principle (eg children proceedings, or proceedings concerning a protected party), must be applied for. Application must be well in advance of any trial (Zeromska-Smith (above)). The question of a parties’ anonymity is a discrete issue. In the case of an appeal to the court of appeal application should normally be made in the appellant’s notice (Norman v Norman; XW v XH (above).
    Where the position under FPR 2010 r 30.12A(2) is as yet so vague, if in doubt an appellant should make application in their notice of appeal; or, if later, by application in FPR 2010 Pt 18.”

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